B.C. Ponnappa and another - Appellants @HASH Smt. Sunitha Biddappa and Others

P.D. Waingankar, J. - This appeal is directed against the judgment and decree dated 9.3.2012 in R.A.No. 51/2008 on the file of Senior Civil Judge at Madikeri, dismissing the appeal while confirming the judgment and decree dated 19.7.2008 in O.S.No. 171/2000 on the file of Addl. Civil Judge (Jr.Dn.) at Madikeri.

The parties are referred to their respective ranks before the Trial Court.

The appellants are referred as ''plaintiffs'' and the respondents as ''defendants'' during the course of the judgment.

The brief facts which gave rise to this appeal are as under :

One P.M. Muthanna was the original owner of the schedule property measuring 5.50 acres out of 19.33 acres in Sy.No. 73/1 of Badaga village in Madikeri Taluk. He entered into a sale agreement dated 10.1.1981 in favour of the plaintiff No. 1 to sell the schedule property for a total consideration of Rs. 32,000/- to mitigate necessities of his joint family. On the date of the agreement, the plaintiff No. 1 paid a sum of Rs. 15,000/- to P.M. Muthanna as advance amount. In pursuance of the sale agreement, P.M. Muthanna delivered the possession of the schedule property in favour of the plaintiffs towards part performance of the contract. It was agreed that the balance amount of Rs. 17,000/- shall be paid by the plaintiff No. 1 to P.M. Muthanna on or before the end of March, 1982 at the time of the registration of the sale-deed. P.M. Muthanna demanded the plaintiffs to pay the balance amount and accordingly, the plaintiff No. 1 paid the entire sale consideration amount to Muthanna, who agreed to execute the sale-deed in favour of the 2nd plaintiff, who is the wife of 1st plaintiff. The plaintiffs developed the schedule property. They started growing coffee, orange, pepper etc., after the delivery of the possession by investing huge amount and converted the schedule property into a coffee garden. In the mean while, one P.P. Shambu son of the brother of Muthanna filed O.S. 46/1981 in the Court of Munslff at Madikeri claiming preferential right to purchase the schedule property and to declare the sale agreement executed by Muthanna for the sale of property in favour of the plaintiff No. 1 as invalid. The suit came to be dismissed on 13.6.1990. Appeal preferred against the judgment and decree also dismissed. Sometimes after the dismissal of O.S.No. 46/1981 and dismissal of appeal, defendant Nos. 1 and 2 P.M. Biddappa and P.M. Kaveriyappa the children of P.M. Muthanna filed O.S.No. 152/1988 against their father P.M. Muthanna and the plaintiffs to declare that the plaintiffs and defendant No. 1 their father are in joint possession and enjoyment of the schedule property and for a decree of permanent injunction restraining the defendant No. 2 who is plaintiff No. 1 in this suit from entering and damaging the schedule property. By judgment and decree dated 16.12.1996 suit came to be dismissed. No appeal was filed. In the meanwhile, Muthanna died. During the life time of Muthanna after the dismissal of O.S.No. 46/1981 he had agreed to execute a sale-deed in respect of the schedule property in favour of plaintiff No. 2 Rathi the wife of plaintiff No. 1. In fact the sale-deed was drafted on 2.4.1985. it was signed by Muthanna for himself and on behalf of minor son Kaveriyappa the defendant No. 2. The sale-deed was also signed by P.M. Biddappa the son of Muthanna. The sale-deed was in fact presented for registration before the Sub-Registrar. Because of lunch break, the Sub-Registrar directed the parties to come at 3.00 p.m. for registration of the sale-deed. But unfortunately, the defendant No. 1 and his father Muthanna did not appear before the Sub-Registrar in the afternoon and thereby the sale-deed could not be registered. The plaintiffs called upon the defendant No. 1 and his father Muthanna to get the sale-deed registered. But they have postponed the registration for one or the other reason. The Deputy Commissioner, Kodagu issued a circular prohibiting the registration of sale-deed pertaining to jamma lands. As a result, the sale-deed could not be registered. However, the said circular was stayed by this Court in W.P.No. 3939/1988. Thereafter, the plaintiffs issued notice to the defendants on 4.10.1990 calling upon them to get registered the sale-deed. The notice was not replied. Again a notice was issued on 2.6.1998 calling upon the defendants to get the sale-deed registered within 15 days. The defendants issued untenable reply on 2.9.1998. When the plaintiffs were about to file a suit for specific performance, the defendants expressed their desire to settle the matter by demanding more money. They also agreed to register the sale-deed on 7.11.2000. But they failed and thereby the plaintiffs filed a suit for specific performance of the agreement. In the meanwhile, Muthanna died. It is also contended by the plaintiffs that they have perfected the title over the suit property by adverse possession, since they have been in possession and enjoyment of the property for more than 12 years without any obstruction by the defendants. The plaintiffs sought for a decree in their favour for specific performance.

The defendant No. 2 filed written statement, which has been adopted by defendant No. 1. The defence of the defendants is that they have denied the entire case put forth by the plaintiffs including the execution of sale agreement by Muthanna in favour of the plaintiffs. It is contended that the schedule property is in the possession of the one P.P. Shambu, who is their family member and whose name finds place in the RTC. They have also denied the execution of the sale-deed on 2.4.1985 in favour of the plaintiffs and that the same has been created for the purpose of this litigation. The defendants have contended that the suit is barred by time, bad for non-joinder of necessary parties viz., P.P. Shambu, Rathi and other legal heirs. It is further contended that the plaintiffs have not acted bona-fide or lawfully and therefore no equitable relief of specific performance of the contract be granted in favour of the plaintiffs and hence the defendants have sought for dismissal of the suit.

Pleadings gave rise to the following issues :

Whether the plaintiff proves that the father of the defendants late P.M. Muthanna has entered into an Agreement on 10.1.1981 in favour of the plaintiff in respect of suit schedule property?

Whether the plaintiff proves that, in view of said Agreement dated 10.1.1981, the plaintiff has acquired the possession of the suit schedule property?

Whether the plaintiff proves that, he had paid entire sale consideration as per agreement dated 10.1.1981?

Whether the plaintiff is ready and willing to perform his part of obligation?

Whether the plaintiff is entitled for the relief of getting the sale-deed registered as claimed?

Whether the suit is properly valued for the purpose of Court fee and jurisdiction?

Whether this Court has no jurisdiction to entertain, try and to decide the suit?

Whether the suit is time barred?

Whether the suit is bad for non-joinder of necessary parties?

Whether the plaintiff proves that, he had perfected his right over the suit schedule property by way of adverse possession as alleged?

Whether the plaintiff is entitled for the declaratory relief as sought for?

What decree or what order?

Additional Issues :

Whether the plaintiffs prove the alleged interference caused by the defendants as averred in para 10 of the amended plaint?

Whether the plaintiffs are entitled for the relief of permanent injunction as sought for ?

After framing of the issues, the plaintiff No. 1 got examined as P.W. 1. Ex-Pi to P14 were marked. The defendant No. 2 was examined as D.W. 1 and Ex-Dl was marked. The Trial Court upon hearing the arguments addressed by both the learned Counsel appearing for the parties and on appreciation of evidence recorded a finding that the suit is barred by limitation and the plaintiffs failed to perform their part of the contract which resulted in dismissal of the suit by judgment and decree dated 19.7.2008. However, the Court granted injunction in favour of the plaintiffs and restrained the defendants, their men, agents etc., from interfering with the plaintiffs'' peaceful possession and enjoyment of the schedule property.

Challenging the judgment and decree, the plaintiffs preferred R.A.51/2008 on the file of Senior Civil Judge at Madikeri. Upon merits, by judgment and decree 9.3.2012, the appeal came to be dismissed, while confirming the judgment and decree passed by the Trial Court. Questioning the legality and correctness the judgment and decree dated 9.3.2012 in R.A.51/2008, the plaintiffs have preferred this appeal.

Upon hearing both the learned Counsel, the appeal was admitted by framing the following substantial question of law :

"Whether both the Courts below were justified in holding that the suit for specific performance is barred by limitation when admittedly, there were two suits filed in O.S.46/1981 by one of the brother of the vendor for preferential right was pending in respect of very same property and another suit in O.S.No. 152/1988 challenging the validity of the agreement dated 10.1.1981 based on which the present suit for specific performance is filed?

I have heard both the learned Counsel on the above substantial question of law raised in this appeal. Perused the records and the judgment and decree passed by both the Courts below and the decisions relied upon by the Counsel for the appellant in the case of Faquir Chand and another v. Sudesh Kumari, 2006 (47) AIC 724 (SC) : (2006) 12 SCC 146 and in the case of Nirmala Anand v. Aduent Corporation (P) Ltd., and others, (2002) 5 SCC 481

The execution of the agreement by Muthanna in favour of plaintiff No. 1 for sale of the schedule property for consideration of Rs. 32,000/-is denied by the defendants. The certified copy of the sale agreement is produced and marked as per Ex-P2. The said sale agreement was subject-matter of O.S. No. 46/1981 filed by P.P. Shambu the brother''s son of Muthanna. The said agreement was also the subject-matter of O.S.No. 152/1988. While deciding those suits, the Courts held that the execution of the agreement by Muthanna in favour of the plaintiffs has been duly established. Both the Courts below upon appreciation and re-appreciation of evidence have held that the execution of sale agreement has been duly proved. The reading of the sale agreement marked as Ex-P2 would go to show that the agreement was executed to sell the property for a total consideration of Rs. 32,000/- and on the date of the agreement i.e., 10.1.1981, the plaintiff No. 1 paid a sum of Rs. 15,000/- to Muthanna. It is also evident from Clause 3 of the agreement that the possession of the property was delivered to the plaintiff No. 1 to cultivate the same with any crop of his choice and enjoy the same in the manner he deems fit without any claim or demand from the vendor or any person or persons claiming through the vendor. The delivery of possession is further fortified from the fact that the plaintiffs have taken up a contention that they have perfected the title over the schedule property by adverse possession though subsequently the said plea was withdrawn with the permission of the Court. Thus, both the Courts below have rightly held the due execution of the agreement by Muthanna and the possession being handed over in part performance of the contract.

The suit came to be dismissed by both the Courts below on the ground that the suit is barred by time. The suit was also dismissed on the ground that the plaintiff was not ready and willing to perform his part of the contract. The finding to this effect has been rendered upon consideration of the evidence placed on record by both the parties. It is a finding as to the facts involved in this case and therefore this Court sitting in second appeal cannot interfere with the said finding given by both the Court below. As such, the decisions relied upon by the Counsel for the appellants are of no assistance. Therefore, it is suffice to say that the plaintiff was not ready and willing to perform his part of the contract. The sale-deed said to have been prepared and signed by Muthanna in favour of the plaintiff No. 2 the wife of the plaintiff No. 1 has nothing to do with the sale agreement executed by Muthanna. The said sale-deed was not prepared in pursuance of a sale agreement executed by Muthanna in favour of the plaintiff No. 1. Even the amount shown in the so called sale-deed said to have been prepared and signed by Muthanna is totally different from the sale consideration shown in the sale agreement Ex. P2. Therefore, on the basis of the sale-deed said to have been prepared, one cannot come to the conclusion that the plaintiff was ever ready to perform his part of the contract.

Coming to the limitation, the agreement was executed in the year 1981. Under the agreement the plaintiff was required to pay the balance sale consideration of Rs. 17,000/- on or before March, 1981 and get the sale-deed registered. That means the time was the essence of the contract. There is nothing on record to show the plaintiff was ready to pay the balance sale consideration within the time stipulated under the agreement. Even if we go by Article 54 of the Limitation Act, the period to file a suit for specific performance is 3 years from the date of refusal to perform his part of the contract by the defendants. Though O.S.No. 46/1981 and O.S.No. 152/1988 were pending there was no stay and therefore there was no impediment to get the sale-deed executed that has not been done. The plaintiff was aware of the hostility shown by Muthanna when he filed his written statement in O.S.No. 46/1981. At that point of time, the plaintiff No. 1 ought to have taken recourse to law to file the suit for specific performance. He has not even issued a notice to Muthanna expressing his readiness and willingness to pay the balance sale consideration and to get the sale-deed register in his name. Even after dismissal of O.S.No. 152/1988 also, he has not taken any steps to institute a suit for a decree of specific performance. He issued legal notice on 4.10.1990 though the defendants gave untenable reply, plaintiff No. 1 did not file a suit for specific performance though the plaintiff No. 1 issued legal notice dated 4.1.1990 and 2.6.1998, defendants gave reply to the legal notice on 2.9.1998. Thus, plaintiff No. 1 filed a suit in the year 2000 for specific performance of the agreement that was executed in the year 1981. As such, as held by both the Courts below, suit is barred by time. The plaintiff No. 1 was not diligent about his right to file a suit for specific performance. Therefore, I do not find any merit in this appeal to call for my interference.

Accordingly, the appeal is dismissed while confirming the judgment and decree dated 19.7.2008 in O.S.No. 171/2000 on the file of the Addl. Civil Judge (Jr. Dn.) Madikeri.